An Introduction to Legal Reasoning

An Introduction to Legal Reasoning

by Edward H. Levi

Chicago: University of Chicago Press, 1949

ISBN 0-226-47408-9

Review Copyright © 2002 Garret Wilson

18 August 2002 2:52pm

An Introduction to Legal Reasoning was first published in 1949. Its language is slightly dry, not to mention stilted by contemporary standards, but it is nonetheless revealing.

Edward H. Levi addresses processes of legal reasoning the court uses relating to case, statutory, and constitutional law. For each area, he explains the reasoning process in general and then follows up each overview with involved real-world example of evolution of interpretation. In his analyses, it becomes evident that legal reasoning is in a distinct class with its own rules, seeking historical consistency while inevitably following social sentiment. In many ways its methods cannot strictly be called logical. In some cases such reasoning seems inexcusable, were it not for the fact that over time it seems to work.

Levi sees case law as progressing in three stages: "similarity is seen between cases; next the rule of law inherent in the first case is announced; then the rule of law is made applicable to the second case" (2). This amounts to "reasoning by example", and Levi gives specific instances of cases involving liability from dangerous objects to trace the evolution of the very concept of an inherently dangerous object and its applicability. In the end, "the adoption of an idea by a court reflects the power structure of the community" (6).

Levi's point is that in early cases a decision is made without regard to all-encompassing principles—or, if such principles are implied, they are inevitably short-sighted. It is through future cases that such principles are discovered and refined and eventually applied to even later cases. Through this processes, most recent cases may be decided using completely separate rules than those used in the early cases.

Such a process seems similar to the evolution of scientific theories: early theories such as that of omnipresent "ether" attempted to explain the propogation of light, until later discoveries and situations called for new theories to encompass new findings. Newer theories are therefore more far-reaching, making older ones redundant in most casesor even contradict them.

When determining similarity of difference among cases in order to establish rules, Levi claims that a judge "is not bound by the statement of the rule of law made by the prior judge even in the controlling case. The statement is mere dictum, and this means that the judge in the present case may find irrelevant the existence or absence of facts which prior judges through important) (2). In this way, new rules can be made to replace old, although Levi does not make it clear what leeway a judge has in creating rules that contradict previous decisions that make up the precedent.

Levi's statement that the judge's "statement [of the rule] is mere dictum" seems odd to the novice, because when briefing a case a student of the law is led to believe that the very rule is precisely what is not dicta. Perhaps Levi is meaning to stress that while a particular rule might be essential to the decision, the rule remains implicit in the decision and therefore open to future reconstruction—the judge's statement concerning the rule is therefore separate from the rule itself and therefore dictum. Alternatively, Levi could simply be relegating the statement of rule to a lower status than the facts of the case in case comparison.

In describing the process of reasoning by example, Levi recalls Derrida and other linguistic philosophers who claim that meaning is found not in words, but by their usage, which immediately changes any set meaning one might erroneously assume the word to have. "[R]easoning by example will operate to change the idea after it has been adopted", Levi says (6). "[T]he kind of reasoning involved in the legal process is one in which the classification changes as the classification is made" (3). For the induction-like reasoning used in reasoning by example, "the general finds its meaning in the relationship between the particulars" (27).

Levi next examines the interpretation of statutory law, rules that have been created by legislatures, and finds that their meanings are never unambiguous. For legislation, a judge is to some extent forever tied to the wording of the statute, however vague. I this sense, "courts are less free in applying a statue than in dealing with case law" (7). As Levi's examples show, however, this restriction has some room for modification not only through the limitation of language but also through the process by which legislation is enacted.

He traces the social process a statute goes through during its creation, pointing out that political climates, compromises, and conclusions mean that looking at the context of a law might not always clear up ambiguities—literal language might have indeed been used precisely to allow opposition that disagreed with the intent of the writer of the legislation. "[W]hat the legislature intended is ambiguous. In a significant sense there is only a general intent which preserves as much ambiguity in the concept used as though it had been created by case law" (30).

For an example of the evolution of statutory interpretation, Levi presents the June 25, 1910 Mann Act, also called the "White Slave Traffic Act" (33), which sought to criminalize the conspiracy of selling of young girls into prostitution rumored to be occurring throughout the United States. the language of the Act essentially made it a felony to transport a female across state lines for the purpose of "prostitution", "debauchery", or "any other immoral practice" (34). Whatever the intent, such words were ambiguous as to be interpreted in forbidding many manners of what the Court might from time to time consider immoral.

Even the connection between transportation and the "immoral practice" was in dispute. In the Mortensen case, a husband and wife who operated a house of prostitution in Grand Island, Nebraska went on vacation in another state, inviting two of the prostitute girls to accompany them. The prosecution maintained that, though in the absence of prostitution occurred during the trip, the returning of the girls to their occupation at the trip's end amounted to trans-state transportation for the purpose of prostitution. This case was overruled; " any event the interstate commerce journey was hardly 'a calculated means for effectuating sexual immorality' since, from all that appeared, leaving the girls in Grand Island would have worked just as well" (47). The sequence of decisions illustrate, however, that theories of statutory interpretation change over time in similar ways as does case law."

In constitutional law, the presence of a constitution strangely results in more flexibility in interpretation than its absence, Levi claims. While in case law judges try to follow previous rules or create new ones, the "influence of constitution worship... gives freedom to a court. It can always abandon what has been said in order to go back to the written document itself" (59). The Constitution, like legislation, is inherently ambiguous. "There can be no authoritative interpretation of the Constitution. The Constitution in its general provisions embodies the conflicting ideals of the community. Who is to say what these ideals mean in any definite way? Certainly not the framers, for they did their work when the words were put down. The words are ambiguous" (58). If the framers would have known exactly what they meant, it seems, they would have been less ambiguous.

But likewise similar to legislation, "a written constitution must be enormously ambiguous in its general provisions." This means that "If there has been an incorrect interpretation of the words, an amendment would come close to repeating the same words. What is dsired is a different emphasis, not different language. This is tantamount to saying that what is required is a different interpretation rather than an amendment." The result is that "constitutional interpretation cannot be as consistent as case-law development or the application of statutes. The development proceeds in shifts; occasionally there are abrupt changes in direction" (59-60).

The ambiguity of a constitution does mean that the creation of principles are necessary for interpretation, as with case law. Using the commerce clause of the Constitution (which was shown earlier to be relevant in the interpretation of the White Slave Traffic Act) Levi shows how its interpretation has lurched and shifted as it was applied to different situations. "The simple and ambiguous commerce clause was thus interpreted by made up concepts of equal stature: direct as against indirect; transportation, a current, a flow as against local manufacture" (87). As with the created category of inherently dangerous object in the case law examples, the commerce clause caused the fabrication of "illicit articles", leading to the concept of "anticipated evil", interacting with such concepts as "local production" (95).

Therefore, "Legal reasoning has a logic of its own", inherently reflecting social theories and changes in society (104). Legal reasoning is imperfect (3), but Levi finds it necessary for progress in this area in which there are real disagreements—in his mind, it is the only method that could work (104).